V. Raja Gopalan and Another vs Visakhapatnam Port Trust and Others

P. Ramakrishnam Raju, J.—Petitioner in Writ Petition No. 1903 of 1993 was recruited as Clerk on February 16, 1970 in the Research and Planning Department of the first respondent-Organization. Later, he was promoted as Junior Assistant in 1974 and again as Senior Assistant in April 1, 1979. The post of Senior Assistant is Class-III Supervisory Category. There are three posts of Senior Assistants, of which the petitioner is the senior most. There is one post of Head Assistant which is also Class-III Supervisory Post. The post of Head Assistant fell vacant on November 5, 1992. The second respondent by his impugned proceedings dated February 20, 1993 promoted the third respondent to the said post which is illegal. The third respondent was promoted as Clerk much later to the petitioner. So also he was promoted as Senior Assistant much later than the petitioner. In all respects, the third respondent is junior to the petitioner, but he was promoted as Head Assistant ignoring the seniority of the petitioner since the third respondent belongs to scheduled Caste. Hence, this writ petition.

The petitioner in Writ Petition No. 13643 of 1993 was selected and appointed as Sub-Assistant Health Inspector in the first respondent organization on October 7, 1964. Later he earned promotions as Sanitary, Malaria Inspector Grade-II on July 22, 1972 and Sanitary malaria Inspector Grade-I on July 1, 1978. He is the senior most Sanitary Malaria Inspector Grade-I. Chief Health Inspector is the next higher post. The said post was created for the first time in the Port during 1974 and one Sri P.P. Nath was appointed. Due to his sudden death in 1975, as vacancy arose, it was filled up by promoting Sri. B.V. Ramabhadram. The said Ramabhadram since retired in 1981, one Sri K. Appala Narasaiah was promoted and he continued to hold the said post till he retired on August 31, 1993. Thus there is clear vacancy of Chief Health Inspector with effect from September 1, 1993. However, ignoring the claims of the petitioner, the said post was reserved for candidates belonging to reserved category which is illegal and consequently, the third respondent who belongs to Scheduled Caste category was promoted on September 21, 1993. This action is challenged in this writ petition.

In the counter-affidavit filed by the Chief Medical Officer of the first respondent-Port, it is admitted that the petitioners are seniors in the respective categories of posts, but as per Chapter 11-3 of the brochure regulating the appointments of the Port, the vacancy shall be filled in by the candidates belonging to the Scheduled Caste in the second recruitment year, and as there was no eligible Scheduled Caste candidate in the said cadre, the said vacancy was filled in by the open category candidature and the reservation was carried over to the third recruitment year and as per the said brochure, it shall be filled in only by a Scheduled Caste candidate. So, the vacancy was carried forward for three years, since no eligible Scheduled Caste or Scheduled Tribe candidate was available in the first two recruitment years. The selection committee has accordingly, considered the claim of the third respondent who is the lone Scheduled Caste candidate working as Sanitary Malaria Inspector-Grade-I, for the post of Chief Health Inspector and accordingly, orders were issued appointing him as Chief Health Inspector With effect from September 21, 1993. So also the third respondent in Writ Petition No. 1983 of 1993 was appointed as Head Assistant since the said post was reserved for Scheduled Caste candidate.

In a decision reported in Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association Vs. Union of India (UOI) and Others, Justice Chinnapa Reddy observed that reservation is not a concession or privilege extended to the members of Scheduled Caste, Scheduled Tribe and other Socially and Economically Backward Classes but it is in recognition of their fundamental right to equality of opportunity and in discharge of the constitutional obligation imposed upon the State to secure to all its citizens justice, social, economic and political, and equality of status and opportunity, to assure the dignity of individual among all citizens, to promote with special care the educational and economic interest of the weaker sections of the people, to ensure their participation on equality basis in the administration of the affairs of the country and generally to foster the ideal of a Sovereign, Socialist, Secular, Democratic Republic. Therefore, every lawful method is permissible to secure the due representation of the Scheduled Castes and Scheduled Tribes in the public services. Keeping this in view I shall examine the question, i.e., whether a lone post could be reserved for them.

Sri N. Ramamohana Rao, the learned counsel for the petitioners submits that the post of Head Assistant as well as Chief Health Inspector are lone posts in the respective cadres, and the question of reservation does not arise. Reliance has been placed on a decision reported in Chakradhar Paswan Vs. State of Bihar and Ors, in the said decision, the question that fell for decision was whether the posts of Director and Deputy Directors of three systems of indigenous medicines viz., Homeopathic, Ayurvedic and Unani respectively are distinct and separate systems of medicine and so whether 50 point roster could not be applied. If the post of Deputy Director Homeopathic is an isolated post, reservation of the same for a Scheduled Caste candidate amounts to 100 percent reservation and must therefore be declared as impermissible under Article 16(4) of the Constitution. The answer of the Supreme Court is that the post of Director and three Deputy Directors which are though Class-I Posts, do not constitute one cadre. They are members of the same service, but do not belong to the same cadre. According to 50 point roster, if a single post falls vacant the first vacancy should be treated as unreserved and when single post falls vacant again on a second occasion, the same must be treated as reserved. Having regard to the fact that the post of Deputy Director, Homeopathic distinct and different from the three posts, the Supreme Court held that reservation of such a post for members of Scheduled Caste and Scheduled Tribe is impermissible. The isolated post of those three Deputy Directors can be subjected to 50 point roster by rotation system is not an answer. However, it was observed that even assuming that 50 point roster applies, the first vacancy in the cadre of Deputy Directors i.e., the post of Deputy Directors, Homeopathic has to be treated as unreserved and accordingly, it has to be thrown open to all and the candidates belonging to Scheduled Caste had to compete with others. Following this decision, I have no hesitation to hold that the sole post of Head, Assistant cannot be reserved.

Sri T. Gopala Krishna, the learned counsel for the respondents submits that according to 40 point roster though the post of Chief Health Inspector was created on July 16, 1974 one P.P. Nath who belongs to open category was promoted and appointed in that Vacancy as no Scheduled Caste candidate was available. Since the said Nath died in the year 1975 the vacancy was carried forward and as no eligible Scheduled Caste candidate was available in the lower cadre, one B.V. Rambhadram was appointed. The said Ramabhadram applied leave in 1980. As per roster, the third point shall go to a candidate belonging to open category, but as per chapter - 11.3 of the Brochure, the vacancy shall be filled in by a candidate belonging to Scheduled Caste as it happened to be the second recruitment year. But as there were no eligible Scheduled Caste candidate, the said vacancy was filled up again by open category candidate, Mr. K. Appala Narasaiah. Since Appala Narasaiah retired on August 31, 1993, the vacancy was carried forward to the third recruitment year and as per Chapter 11.3 of the brochure, it shall be filled in only by the Scheduled Caste candidate and as the third respondent is available from the said category, he was appointed, though the petitioner was senior to him.

The learned counsel placed reliance on a decision reported in Arati Ray Choudhary Vs. Union of India (UOI) and Others, in support of his contention that the said course is permissible. In the said decision, it is observed that "the unutilised quota can be carried forward not more than two years; and that if there be only one vacancy to be filled on a given year of recruitment, it has to be treated as unreserved irrespective of whether it occurs in the model roster at a reserved point". The Supreme Court has held that as there are two secondary schools for girls run by S.C. Railway, one at Andhra and the other at Kharagpur and as the vacancy of Headmistress of the Andhra School was already filled by a candidate from open category, the contention that the second vacancy also should be filled by a candidate from open category on the ground that the sole post cannot be reserved, could not be upheld as the open class had already reaped the benefit when the Headmistress of Andhra School was appointed and if the carry forward rule has to be given any meaning, the vacancy shall have to be carried forward for the benefit of Scheduled Caste or Scheduled Tribe for two years and as the Kharagpur vacancy has fallen within the time, the same cannot go to the petitioners, who admittedly does not belong to reserved class. "The construction sought to be put on the rule would perpetuate a social injustice which has clouded the lives of a large section of humanity which is struggling to find its feet. This decision has no application to the facts of the present case. Firstly, as already seen it is ruled that if there is only one vacancy to be filled in a given year of recruitment, it has to be treated as unreserved irrespective of whether it occurs in the model roster at a reserved point; secondly, the unutilised quota cannot be carried forward for more than two recruitment years; and thirdly, this decision was also noticed by the Division Bench of the Supreme Court in Chakradhar v. State of Bihar (supra) and it is observed that the decision in A.R. Choudhary v. Union of India (supra) turned on the carry forward rule and is clearly distinguishable on facts. Even the latest decision of the Supreme Court reported in Bhide Girls Education Society v. Education Officer 1933 Supp. (3) SCC 527, the Supreme Court reiterated that Dr. Chakradhar Paswan case (supra) concludes the controversy on this aspect. It is observed that "it is the admitted position that there is only one post of Headmistress in the High School run by the appellant society and as such there cannot be any reservation on such post." In view of this latest pronouncement of the Supreme Court quietus should be given to this controversy.

The contentions of the learned counsel for the respondents can be tested from a different angle. It is clearly well settled that there cannot be reservation for more than 50 per cent of the vacancies. If the contention of the learned counsel for the respondents is accepted and the vacancy is carried forward up to three recruitment years, it is clearly impermissble as demonstrated by the Supreme Court in a case reported in Indra Sawhney v. Union of India 1993 Labour and Industrial Cases 129. Therefore, to carry forward the vacancy for more than two recruitment years is clearly not permissible.

The learned Counsel for the petitioners has rightly relied on a recent decision of a Division Bench of the Bombay High Court reported in Maharashtriya Mandal, Pune v. University of Poona 1994 Labour and industrial Cases P 87 which has summed up the several rulings on this question. After discussing at length, it is observed as follows:-

"We are of the respectful opinion that on its own reasoning, the decision in so far as it strikes down the Rule is not sustainable. The most that could have been done in that case was to quash the appointments in excess of 50% inasmuch as, as a matter of fact, more than 50% of the vacancies for the year 1960 came to be reserved by virtue of the said Rule. But it would not be correct to presume that is the necessary and the only consequence of that rule. Let us take the very illustration given at pp. 691- 92, - namely 100 vacancies arising in the three successive years and 18% being the reservation quota-and examine. Take a case, where in the first year, out of 18 reserved vacancies 9 are filled up and 9 are carried forward. Result would be that in the third year 9+9+18=36 ( out of a total of 100) would be reserved which would be far less than 50% the rule in M.R. Balaji and Others Vs. State of Mysore, is not violated. But by striking down the rule itself, carrying forward of vacancies even in such a situation has become impermissible, which appears to us indefensible in principle."

I respectfully follow the dicta of the Division Bench and accordingly, hold that Chapter 11.3 of the Brochure permitting to carry forward the vacancy for three recruitment years is bad and cannot be followed.

In view of the above discussion, both the writ petitions have to be allowed and they are accordingly, allowed. As directed by the Division Bench of the Bombay High Court referred in Maharashtriya Mandal, Pune v. University of Poona (supra), I set aside the appointment of the third respondent (in both the writ petitions), and direct the respondents to treat the post of Head Assistant as well as Chief Health Inspector as not a reserved and fill them by promoting the non-reserved candidates by allowing the petitioners to compete for selection. In the circumstances no order as to costs.